Transgender pronoun rules violate First Amendment

The First Amendment is being violated by recent government demands that people use pronouns others than “he” and “she” to refer to their transgender peers. The New York City Human Rights Commission has issued guidance saying that businesses may be fined for “harassment” if they do not use customers’ desired pronouns in relation to questions of gender, including preferred usages such as “ze” and “hir.” And not just businesses, but apparently other customers, since New York law has been held by a state appeals court to impose liability for “harassment” on fellow customers.

In Oregon, a school district has settled a transgender bias claim, paying $60,000 to a transgender employee who demanded to be called “they” rather than “he” or “she.” The district has agreed to “develop official guidance documents” for “pronoun usage,” and “violations of the guidance will be grounds for discipline.”

The teacher, Leo Soell, born Brina, is essentially conscripting his co-workers into using “they” to convey an idea about language and how language should be: “Some people might argue, ‘Why don’t you just use “he?” It’s masculine,’” said Soell. “But ‘they’ continuously points to the fact that the language is not inclusive.” As the Portland Tribune notes, “using ‘they’ as a singular pronoun sets off grammar alarms in many people’s brains, including Soell’s, when they first begin changing pronouns.”

As law professor Eugene Volokh observes at the Washington Post, to mandate such “highly conspicuous, nonstandard usage . . . violates basic First Amendment principles. Drivers, the Supreme Court held in Wooley v. Maynard (1978), are entitled not to display ‘Live Free or Die’ on their license plates — not to be ‘in effect require[d] … [to] use their private property as a ‘mobile billboard’ for the State’s ideological message.’ They would likewise be free not to display ‘Language Should Be More Inclusive.’ And they should be free not to use words that ‘set off grammar alarms’” that signal such an ideological message.”

Similarly, Professor Volokh notes, it is improper for the government to force people or businesses to use “ze,” a made-up word that carries an obvious political connotation (endorsement of the “non-binary” view of gender). That is because under Supreme Court precedent, “We can’t be required to even display a license plate that says ‘Live Free or Die’ on our car, if we object to the message; that’s what the court held in Wooley v. Maynard (1978).”

Non-transgender employees have no right to force people to call them by an imaginary or ungrammatical pronoun, so as a matter of simple equity, transgender people should not be able to make such demands, either (and the vast majority of transgender people do not even want to be called “they” or “ze”). Courts have ruled that the federal civil-rights laws do not create a right to affirmative action or special treatment, in cases such as Coalition for Economic Equity v. Wilson (1997) and Schuette v. BAMN (2014).

If these transgender mandates are challenged on First Amendment grounds, government officials will falsely claim that they are justified by a “compelling government interest” in eradicating discrimination. But giving someone the right to be called an imaginary or ungrammatical pronoun is not about eradicating discrimination, but rather enforcing it, since it involves giving that employee special rights.

When progressive censors want to restrict First Amendment rights, or justify the use of race in government decisionmaking, they sometimes argue that there is a “compelling government interest” in eradicating discrimination that justifies doing so. Occasionally the courts accept this reasoning, even though a “compelling interest” exception is not found in the language of either the First Amendment or the Equal Protection Clause. Other times, they don’t, such as in the Supreme Court’s 5-to-4 Boy Scouts v. Dale decision, which overturned application of a state’s antidiscrimination law as a violation of freedom of expressive association because the burden on the Boy Scouts’ First Amendment rights was deemed more than “incidental.”

But the Supreme Court has previously declined to allow states to affirmatively compel speech under their antidiscrimination laws. For example, in Hurley v. Irish American Gay Group of Boston (1995), the Supreme Court rejected Massachusetts’ attempt to apply its law against discrimination in public accommodations to force a parade to admit a gay-rights contingent.

Moreover, there is not a compelling interest in eradicating everything that a legislature or bureaucrat may choose to label as “discrimination” (for example, federal appeals courts have ruled these is no compelling interest in eradicating racially “disparate impact,” as opposed to intentional discrimination. See, e.g., People Who Care v. Rockford Board of Education 111 F.3d 528, 534 (1997)). So government officials cannot simply redefine failure to use a special pronoun as discrimination. Nor can they justify special treatment by legislatively redefining its absence as discrimination. See Lamprecht v. FCC,958 F.2d 382, 392 n. 2 (D.C.Cir.1992).

Moreover, requiring the use of imaginary or ungrammatical pronouns defeats other compelling government interests in the educational setting, by undermining the educational process. As Scott Shackford notes at Reason, such mandates create a particular “problem in an elementary school environment that is supposed to be teaching children correct grammar, including pronoun use.” The importance of teaching school children proper grammar simply outweighs any interest the government may have in dictating the use of a special pronoun for the rare, idiosyncratic transgender employee who wishes to be called “they” or “ze.” See Burwell v. Hobby Lobby Stores, 134 S.Ct. 2751, 2780 (2014) (“Even a compelling interest may be outweighed in some circumstances by another even weightier consideration.”)

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. Hans also writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”

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